There is a striking political and legal irony unfolding around climate advocate Mike Smith of Ngāpuhi and Ngāti Kahu.
While Smith has spent days before the Supreme Court arguing that the Crown should be required to defend the adequacy of its climate response at trial, Parliament has moved in the opposite direction on another of his landmark cases — passing legislation designed to prevent climate-damage claims such as Smith v Fonterra from proceeding against major emitters.
For Smith, the timing brings the central issue of #TeKaupapa into sharp focus.
What happens when Parliament changes the law to close off a legal pathway just as the courts are being asked to determine how far climate accountability should extend?
And if New Zealanders cannot pursue major emitters through that route, while the Crown continues to argue against Smith’s public-law climate case proceeding to trial, where does accountability ultimately sit?
Two Smith cases, two different targets
The two proceedings are distinct but connected by a common theme.
In Smith v Attorney-General, Smith is challenging the Crown.
His case argues the Government’s response to climate change is inadequate and engages fundamental rights, including protections relating to life and culture, Te Tiriti o Waitangi and obligations to protect him and his descendants from climate harm.
The Supreme Court is considering whether those arguments should be permitted to proceed to trial.
Smith’s other climate litigation, Smith v Fonterra, targeted major corporate emitters.
That case raised the question of whether companies responsible for substantial greenhouse gas emissions could face civil liability for their contribution to climate harm.
The Supreme Court had previously allowed Smith’s tort claims against major emitters to proceed toward trial. Parliament’s subsequent intervention changes the legal landscape for such litigation.
That is the irony Smith is highlighting.
One branch of the state is considering whether climate accountability can be tested through the courts, while another has legislated to restrict a pathway through which that accountability could be pursued.
Parliament draws a boundary around corporate climate liability
The legislation represents an important assertion of Parliament’s authority over how climate responsibility should be allocated.
Supporters of restricting climate lawsuits can argue that emissions policy is fundamentally a matter for elected governments and legislation rather than individual judges determining liability company by company.
Businesses also operate within emissions and regulatory frameworks established by Parliament, creating legitimate questions about whether courts should impose additional liabilities for conduct permitted under existing law.
Smith’s argument points in the other direction.
He sees access to the courts as an important mechanism for testing responsibility when the consequences of emissions extend across communities and generations.
The political question is therefore larger than one lawsuit.
Should major emitters potentially be answerable through ordinary civil law for climate damage, or should their obligations be determined primarily through Parliament’s climate framework?
Parliament has now drawn that boundary more firmly.
Te Tiriti, whenua and future generations
For Smith, climate change is not an abstract argument about atmospheric carbon.
His litigation is grounded in impacts on whenua, whakapapa, culture and generations yet to come.
That gives the legal battle particular significance within te ao Māori.
Climate impacts can threaten coastal whenua, wāhi tapu, freshwater, ecosystems and customary resources. In some places, adaptation may eventually confront whānau with extraordinarily difficult questions about protecting or leaving ancestral whenua.
The consequences can therefore extend beyond financial loss.
They can affect the relationships between tangata whenua and places carrying whakapapa and cultural responsibilities.
Smith’s challenge asks whether existing legal and political systems provide meaningful protection before those losses become irreversible.
From the courtroom to drought and fire
Smith is also connecting this week’s legal battles with a much more immediate warning — communities need to prepare for worsening climate hazards rather than assuming institutions will move quickly enough to protect them.
He is urging whānau to think seriously about water security, particularly households dependent on tank water, and to prepare for heightened wildfire risk where appropriate.
That includes conserving water, considering additional storage where practical and affordable, and having conversations with whānau and neighbours about emergency plans.
The wider international context adds urgency to the debate, with governments watching climate patterns and the potential for major shifts in global weather conditions.
But the exact severity of drought or fire conditions in any particular part of Aotearoa will depend on New Zealand’s actual seasonal forecasts and local conditions. Climate preparedness should therefore be informed by official meteorological, fire and civil-defence advice rather than treating any particular outcome as guaranteed.
The politics of short-term interests
Smith argues the deeper problem is that short-term interests are being allowed to outweigh the long-term interests of communities, future generations and the environment.
That criticism reaches into one of the most difficult problems facing climate politics.
The costs of reducing emissions can be immediate and highly visible.
Farmers, businesses, households and governments can face expenses now.
The benefits of avoiding the worst climate impacts may emerge over decades and be distributed among people who cannot yet vote.
That creates a political imbalance.
Those carrying the immediate cost can organise and lobby today. Future generations cannot.
For Māori, that tension can sit uneasily alongside whakapapa and kaitiakitanga, where responsibilities extend backwards to tūpuna and forward to mokopuna.
Agriculture at the centre of the argument
Agricultural emissions remain particularly significant in New Zealand’s climate debate.
Smith argues an adequate national response must confront emissions from agriculture alongside other major sources.
That creates difficult questions because agriculture is simultaneously a major economic sector, an important employer and export earner, and a substantial component of New Zealand’s greenhouse-gas profile.
Climate policy therefore has to negotiate environmental responsibility alongside the economic wellbeing of rural communities.
Smith’s warning adds another dimension: those same farming communities can also be among the people exposed to drought, water shortages, extreme heat and wildfire conditions as the climate changes.
The debate is consequently not as simple as farmers versus climate policy.
Agriculture can be both part of the emissions challenge and highly vulnerable to the consequences.
Who carries responsibility when the doors close?
That brings #TeKaupapa back to accountability.
If Parliament determines that major emitters should not face this form of climate liability through the courts, then the responsibility on Parliament to deliver an effective regulatory system arguably becomes even more significant.
If companies are complying with the rules government establishes, those rules need to be capable of producing the emissions reductions New Zealand requires.
Likewise, Smith’s case against the Attorney-General raises the parallel question of whether there is any point at which government inaction or inadequate action becomes reviewable through fundamental rights and Te Tiriti.
These are not simple questions.
There are legitimate constitutional arguments about the boundaries between Parliament, the executive and the judiciary.
But climate change creates an unusual test because the consequences of decisions made now can continue long after today’s governments, ministers and corporate executives have moved on.
#TeKaupapa: You can close a courtroom, but not the climate
That may be the sharpest irony of all.
Parliament can change the law governing climate litigation. It cannot legislate away the physical consequences of a changing climate.
Whether responsibility is enforced through tort law, regulation, emissions pricing, environmental legislation or government policy, the underlying challenge remains.
Emissions continue accumulating.
Communities still need water.
Whenua still needs protection.
Farmers still need resilience against drought and extreme weather.
Whānau still need plans for emergencies.
And mokopuna will inherit the consequences of decisions being made now.
Smith’s message following an extraordinary week across Parliament and the Supreme Court is therefore both political and practical: communities cannot wait for every constitutional argument to be settled before preparing for climate impacts.
His fight for legal accountability continues, but so too does the kaupapa of adaptation.
Protect the wai. Protect the whenua. Prepare the whānau. And keep asking the question Parliament cannot scrub from the statute book: who carries responsibility when climate harm arrives?
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